the digital rights amendment

The defenders of the NSA’s mass surveillance raise a point worth discussing – much of what is being done is legal. They point out that the NSA programs were authorized by Congress, reviewed by Courts, and run by the executive. They also read the Fourth amendment in a very narrow way. Personally, when I read that the people will be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” I’m pretty sure that means electronic communication. It would be bizarre if this right only applied to technologies present in 1789. “Papers and effects” seems to imply a lot of stuff, but the Courts and the executive seem to disagree.

This suggests to me that may we need to make mass surveillance explicitly illegal. How? The Digital Rights Amendment:

The right of the people to be secure in their transactions made through electronic media and other forms of communication, and in the data generated by such transactions, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The people will retain the right to review such warrants and challenge them in the courts.

In other words, you need a warrant to collect our data or even our “metadata.” And we get to see the warrant and we can take you to court. If you think I’m a criminal, you’ll have to explain it in court.

“It would be bizarre if this right only applied to technologies present in 1789.”

It seems worth thinking about the originalism interpretation sometimes promoted by Supreme Court Justice Scalia, in which he combs through late 18th-century dictionaries determining what definitions were being used by Constitution writers. This interpretation has always puzzled me, as most nouns and verbs making up today’s society did not exist in the lexicon or in reality at the writing of the Constitution.

I prefer the “living document” argument put forward by Justice Brennan, in which the Constitution is a guiding document that people must continually reconcile with their present reality.

Take the gun control debate. Originalism: no one’s right to possess flintlock rifle’s and blunderbusses shall be infringed. Living document: we have new “arms” today that did not exist at the time of the writing of the amendment, so it is up to us as a legal society to determine which of these guns people should have the right to. But have your Aiulle Flintlock Pistols and Kentucky Rifles all day long.

So if this issue of electronic communication gets to the Supreme Court, one side may well argue that no, the fourth amendment does not refer to electronic communication, so it is fair game for any search and seizure. The other side may well argue that the fourth amendment does apply to electronic communication through a “spirit of the law” extension, trying to protect the information from illegal search and seizure.

The funny thing is, I have no idea how to predict which of those two positions would be the originalism and which the living document!